Being sued by builder - filed a counterclaim

[Manxman in exile]

2 hours ago, FTMDave said:

OK, this is my fault, I suggested replying forcefully to the solicitor - but others with much, much experience than me advised to ignore his provocations.

 

Don't get sidetracked in things that are irrelevant to tomorrow's set aside hearing.

 

This afternoon I will try to list the important points to mention to the judge if you are asked to speak.

 

It would NOT HAVE BEEN YOUR FAULT if @simeon1964 had sent it off, as you clearly said:

 

On 07/01/2022 at 23:45, FTMDave said:

... However, don't rush off and send this.  Others may disagree and think ignoring is the best strategy.  We have the whole weekend to discuss.  Just I think his rubbish has gone on for far too long and it's time to undermine him when he opens his post on Monday morning just before the hearing.

 

I really hate to say this... but I suspect an awful lot of confusion on this thread (and possibly between simeon and both his former solicitor and the claimant) are down to the OP's less than perfect facility with the nuances of the English language...

[AndyOrch]

Not a chance of the costs being allowed for their application for their own set a side.

 

 

.

[Manxman in exile]

4 hours ago, honeybee13 said:

Were you representing yourself between the dates mentioned by the other side or was your ex-solicitor involved for some of that time please?

 

HB

 

I think you may have hit the nail firmly and squarely on the head there!

 

I strongly suspect that there was a cross-over period where @simeon1964 considered he was representing himself, but had not adequately communicated that to his solicitor and/or the court and/or the claimant.  Thus applications and court documents continued to go to the OP's solicitor, and the request to suspend enforcement action also went there rather than to the OP, and because the OP ignored those requests (which his solicitor may have agreed to but didn't pass onto the OP) the claimant and his solicitor got a bit hacked off with him.

 

Of course, I'm only guessing, but looking back over this thread it wouldn't surprise me at all if something like that happened...

 

@simeon1964  -  wait for FTMDave to come back this afternoon with suggestions as to what to say if the judge asks you any questions.

 

In the meantime, try not to post any more extracts from emails or correspondence to or from anybody without explaining exactly what they are, and why you are posting them.  Otherwise everything gets too complicated and confusing, and you risk getting poor advice.

Edited January 9, 2022 by Manxman in exile

[simeon1964]

first contact with solicitor was recorded delivery dated 19 December

[honeybee13]

Is that the other side's solicitor?

 

HB

[simeon1964]

43 minutes ago, honeybee13 said:

Is that the other side's solicitor?

 

 Yes Claimant's solicitor. It actually his letter dated 9th December not 19th.Dec.

[honeybee13]

This is getting quite complicated with guessing games

 

Are you saying the letter - on paper? - has 9th December on it and arrived on the 19th or something else please? You need to spell it out for us so we're sure what happened.

 

HB

[simeon1964]

6 minutes ago, honeybee13 said:

Are you saying the letter - on paper? - has 9th December on it and arrived on the 19th or something else please? You need to spell it out for us so we're sure what happened.

 

HB

Letter dated 9th Dec don't know when received.

[FTMDave]

OK, ignore the solicitor's provocations.  If you want we can have some fun with him after the hearing, but let's concentrate on the set aside for now.

 

Once again tomorrow is only about set aside, not whether he is right in your dispute or your are.

 

The judge may be appalled by his continual refusal to follow court instructions and refuse the set aside.  The builder will have wasted the £275 fee plus what his solicitor wants.

 

On the other hand 16 grand is a lot of money and the judge might think in the interests of justice there should be a hearing between the two of you and allow the set aside.  He may think the £275 fee and solicitor's costs will be enough "punishment" for the builder.

 

The judge may already have made up their mind and will give you little or no chance to speak.  If you can speak essentially make the points in your WS, starting with the most important first as you won't be able to say much, and get them in as bullet points without waffle.  Tell the judge -

 

1.  It was the builder, not me, that started litigation.

 

2.  It is nonsense to state that he can't understand the court's orders.  English is not my first language yet I can understand them perfectly.

 

3.  The builder ignored the Directions Questionnaire.  The court bent over backwards and allowed him a second chance to file, with a clear warning about what would happen if he didn't file.  Once again he ignored the order.

 

4.  Someone cannot be given infinite chances to follow a court's orders.  it is unreasonable for the court's time, and mine, to be wasted further.

 

5.  The builder also ignored the judgement order, the third order to be ignored.

 

6.  The builder's excuse was that he handed over control of his case to a third party.  There is no Witness Statement from this person.  He or she isn't even named.

 

7.  Even if this person exists, the court's orders arrived at the builder's address and were ignored.

 

8.  The court's instructions were written in simple, easy-to-understand English.

 

9.  This set aside application is not prompt.  The builder knew in July that judgement had gone against him.  He only decided to apply for set aside when enforcement action began.

 

10.  The builder admitted the debt and offered to pay it off at a £100.00 a week during negotiations with my former solicitor.

 

Edited January 9, 2022 by FTMDave
Typo

[Manxman in exile]

2 hours ago, simeon1964 said:

first contact with solicitor was recorded delivery dated 19 December

 

Why have you posted this?  Did you not understand what I posted at the end of #178?  

 

You need to stop posting apparently random posts unless you can explain why you are posting them!  Like Honeybee13 has just said you are forcing us to play guessing games as to what on earth you mean and you are just making things even more confusing.

 

What does "first contact with solicitor was recorded delivery dated 19 December" even mean?  Why are you telling us?  Is it in response to somebody else's question?  If it is, who asked the question you are answering?

 

Just stop posting for now until FTMDave comes up with some suggested answers to any questions the judge may ask you.

 

As about 15 million people on this thread have already told you, you need to sit back and prepare for the hearing.  All you need to think about is:  you didn't start this action, the claimant did; it's the claimant's fault (not yours) that he had a default judgment awarded against him because he ignored clear instructions in a court order; any costs he has incurred are a direct result of his failure to act on that court order.

 

Now just sit back and see what else FTMDave and Andyorch or Honeybee13 or DX100 can suggest by way of preparation for the hearing.

 

Worry about what happens afterwards only if the set-aside is granted...

 

[Edit: cross-posted with FTMDave while I've been typing this post]

 

 

 

1 hour ago, simeon1964 said:

Letter dated 9th Dec don't know when received.

 

 

WHAT?!?!?!?!

 

1 hour ago, FTMDave said:

...On the other hand 16 grand is a lot of money and the judge might think in the interests of justice there should be a hearing between the two of you and allow the set aside.  He may think the £275 fee and solicitor's costs will be enough "punishment" for the builder...

 

 

I fear that might be the case.  It's not clear to me either whether that figure of £16k has any foundation or the OP has just plucked it out of the air...

 

I agree with the points you think the OP needs to try to get across - if the judge asks him any quaestions.

 

1 hour ago, Manxman in exile said:

 

 

WHAT?!?!?!?!

 

Apologies for that intemperate post!  Because of cross-posting I didn't realise the OP was responding (I think) to Honeybee.

 

Still doesn't explain why #179 was posted at all...

Edited January 9, 2022 by Manxman in exile

[honeybee13]

1 hour ago, simeon1964 said:

first contact with solicitor was recorded delivery dated 19 December

 

38 minutes ago, simeon1964 said:

Letter dated 9th Dec don't know when received.

 

Many apologies if this isn't relevant at the moment. If we're talking about the same letter, surely you can check the recorded delivery number and see when it was signed for [by you?].

 

HB

[simeon1964]

56 minutes ago, FTMDave said:

If you can speak essentially make the points in your WS, starting with the most important first as you won't be able to say much, and get them in as bullet points without waffle.  Tell the judge -

 

Do I have to cross reference this with the WS or just read it out when given the opportunity.

[Manxman in exile]

57 minutes ago, honeybee13 said:

 

 

Many apologies if this isn't relevant at the moment. If we're talking about the same letter, surely you can check the recorded delivery number and see when it was signed for [by you?].

 

HB

 Wall... head... banging?

 

33 minutes ago, simeon1964 said:

Do I have to cross reference this with the WS or just read it out when given the opportunity.

 

That is a very good point and a very sensible question to ask.

[simeon1964]

2 hours ago, FTMDave said:

2.  It is nonsense to state that he. "can't understand the court's orders."

FTMDave, please reference me the above quote please in the WS

[FTMDave]

1 hour ago, simeon1964 said:

Do I have to cross reference this with the WS or just read it out when given the opportunity.

It depends on the judge.  Personally if allowed I would say "I would just reiterate what is written in my Witness Statement" and then state as many of the points 1-10 that the judge allows.

[FTMDave]

13 minutes ago, simeon1964 said:

FTMDave, please reference me the above quote please in the WS

It's referring to point 28 in their WS.

[simeon1964]

41 minutes ago, FTMDave said:

It depends on the judge

FMTDave,  the claimant lawyer mentioned  Denton test case .."Prejudices and unfair and unjust," i would say that there is no comparable here  as the claimant not  coming into court with clean hands by naming his friend or business associate in his Ws. I have no idea about Denton test case but believed he must have gone to equity with clean hands. Makes any sense?

[AndyOrch]

You won't be cross examining anyone you are litigant and this is county court Small Claims Track.

 

If they wish to refer to Denton you refer the judge to the following.....

 

DEFAULT JUDGMENT ON COUNTERCLAIM NOT SET ASIDE – AN OBJECT LESSON IN STAYING AWAKE IN LITIGATION – Civil Litigation Brief

WWW.CIVILLITIGATIONBRIEF.COM

---

The decision of Master Matthews today in Goldcrest Distribution Ltd -v- McCole [2016] EWHC 1571 (Ch) provides an object lesson in the need to stay awake to procedural issues throughout litigation. …

 

[Manxman in exile]

4 hours ago, simeon1964 said:

FMTDave,  the claimant lawyer mentioned  Denton test case .."Prejudices and unfair and unjust," i would say that there is no comparable here  as the claimant not  coming into court with clean hands by naming his friend or business associate in his Ws. I have no idea about Denton test case but believed he must have gone to equity with clean hands. Makes any sense?

 

I don't know either, but I think that at this stage I would strongly advise you to avoid entering into any discussions where you have no idea what the subject of the discussion is about.  

 

Just follow the advice FTMDave gives in #190 & 191.

 

The only other thing I would add is this:  if the judge speaks to you or asks you a question, and you do not understand what he means, don't pretend that you do understand it.  All you need to do is simply say something like:  "I'm sorry your honour, but I'm afraid English is not my first language and I didn't fully understand what you have just said/just asked me.  Can I ask you to explain it a bit clearer for me, please, so I can understand?"  So long as you ask politely and respectfully, the judge will try to help you to understand.  

 

And don't let anything the claimant's solicitor says or does annoy you or make you angry.  But if he does wind you up and annoy you, don't let him or the judge see that you are annoyed.  Be polite and respectful to everybody in court at all times.

 

I wish you the very best of luck!!!

 

 

nb - when you get to court check how to address the judge.  It might be "your honour"  or it might simply be "Sir" or "Madam" - I don't know.   But even if you make a mistake and get it wrong, they won't hold it against you.

Edited January 9, 2022 by Manxman in exile

[simeon1964]

8 hours ago, Manxman in exile said:

b - when you get to court check how to address the judge.  It might be "your honour"  or it might simply be "Sir" or "Madam" - I don't know.   But even if you make a mistake and get it wrong, they won't hold it against you.

 very informative and thanks

[simeon1964]

Set aside application granted, no cost awarded, but  to re-plead the defence and counterclaim, properly particularised, whether is negligence, breach of contract by the 24January

[Manxman in exile]

That's unfortunate - bad luck.

 

I have a couple of questions about your counterclaim that I want to think about but might help you going forward.  I'll get back with them later today or tomorrow.  I'm sure others will have ideas too.

 

Am I right that you need to re-submit both your defence and your re-drafted counterclaim by 24 January?

[FTMDave]

Don't be too disappointed by this result, it was always likely, we see set asides granted much more commonly than they are refused.

 

It would be very useful for future users if you could give us a quick bullet-point account of what happened during the hearing.

[Manxman in exile]

[Edit:  Apologies for odd formatting.  It's a copy and paste from Word]

 

Just looking back over this thread, can I ask you a few questions about the details of the claim and counterclaim you posted in #91 on 22 December last month?

 

• ·        In a letter – I presume to you - the claimant says you engaged him to carry out work on your property according to plans provided by a structural engineer whom you had engaged.  He claims in the letter that the work he carried out was approved both by the structural engineer and by the local Building control inspector.

 

• ·        The letter further goes on to claim that your structural engineer subsequently determined that further piling work was required but, as the claimant does not undertake this sort of piling work, you had to employ a specialist piling company to do this extra piling.  The claimant says in his letter that you – not he – are responsible for paying this other company’s invoice.

 

• ·        He then says you owe him £2866 for work he has done but you have not yet paid.

 

• ·        In his Particulars of Claim the claimant says that you are trying to get him to pay the invoice you have received from the specialist piling company.  He says that that work was not his responsibility and is for you to pay.

 

• ·        He further claims that you asked him to do additional work over and above that which had originally been agreed between you, and that he carried out this work in the same area that the specialist piling company was working in.  He claims you never paid for this additional work he did, and he is therefore claiming £2866.

 

• ·        In your defence/counterclaim the details appear to be quite similar, except you seem to say that you had engaged the builder before your structural engineer had provided plans etc., but that work would be carried out according to the engineer’s plans.  It was agreed that you would pay in three instalments of £1433 each.  You made two of these payments.  You did not pay the final payment because work was not completed.

 

• ·        You employed a building control inspector to inspect the claimant’s work, and he said it also needed to be inspected by a structural engineer who told you that further underpinning and piling was required.  The claimant told you he was not able to undertake this work, so you engaged a specialist piling company and they undertook the work for £2500 which you paid.

 

• ·        You then go on to say (and this appears to be the first mention of this) that the cost of re-working, putting right and completing the claimant’s work which has been left undone, will cost you £16000 and you are counterclaiming for this amount.

 

(You apparently then engaged the builder to do further work, which he did, and which you paid him for.  I don’t see the relevance of this – except why use him again if his earlier work was unsatisfactory?)

 

Assuming that the above summary more or less accurately reflects what you posted in #91, I would have thought that you need to consider the answers to the following questions before re-working your defence and counterclaim.  I’m sure others can think of further questions, but mine would be:

 

1.      What work exactly did you originally engage the builder to carry out?  He seems to think it was completed but you don’t.  Can you explain this?

 

2.     Did that originally agreed work include the further underpinning and piling that was identified as required by your structural engineer, or was that entirely new and unforeseen additional work?

 

3.     Did you expect the claimant to pay for the work carried out by the specialist piling company, and if so, why?

4.     Have you paid the claimant for all the work he has actually carried out?

 

5.     As regards your counterclaim for £16000, how is that figure arrived at?  (So far as I can tell the claimant was meant to carry out work costing £5k - £7k and the specialist piling company only cost £2500.  Where does £16k come from?)

 

6.     What evidence do you have that the work the claimant did was unsatisfactory and/or not completed?

 

7.     What evidence do you have that the claimant negligently or otherwise is responsible for causing damage to your property that will require almost £16000 to put right?

 

8.     Is it at all possible that the damage to your property was caused by the specialist piling company and not by the claimant?

 

9.     If you were so dissatisfied with the claimant’s work, why did you engage him to carry out further work?  (Paras 13 & 14 of your defence).

 

The reason I’m asking these questions is to put your defence and counterclaim into the proper context so that people can give you helpful advice as to how to redraft them.

 

I don’t suggest that you attempt to answer those questions straight away, but I think you might find it helpful to start giving them some consideration over the next day or two as I really think they will help you structure your defence and counterclaim.  Just start to make notes about how you would answer them. They also might be the sort of questions you might get asked at the hearing, so best be prepared for them.

 

But before you do anything, wait and see what other people suggest.  They may have additional ideas or they may simply think that what I’m suggesting is a pointless waste of your time.

Edited January 10, 2022 by Manxman in exile

[simeon1964]

The flaws

The judge agrees 4x the initial contract….. (This I don’t understand because both initial and second contract cannot be 4times unless I am not understanding something or reading my claim different)

The weakness in the defence and counterclaim.

To particularise, negligence, breaches

That not that the Judge feels the claimant has prospect of success but agrees the defence counterclaim lacks deficiencies and for that reason she will allow the relief.

The judge took into considerations all CAG bullet points drafted for me but for the flaws in my defence and counterclaim which I myself could not spot.

 

It was too much to take all in and was too late for me to realise I had to be jotting things down.

The Judge did say that her judgement will come in post a bit late but will expect the defence counterclaim by the24th January.